Doe v. Attorney General of US, C-88-3820-CAL.

• Decision Date: 25 August 1989
• Docket Number: No. C-88-3820-CAL.,C-88-3820-CAL.
• Citation: 723 F. Supp. 452
• Parties: John DOE, Plaintiff, v. ATTORNEY GENERAL OF the UNITED STATES, et al., Defendants.
• Court: U.S. District Court — Northern District of California

723 F. Supp. 452

John DOE, Plaintiff, v. ATTORNEY GENERAL OF the UNITED STATES, et al., Defendants.

No. C-88-3820-CAL.

United States District Court, N.D. California.

August 25, 1989.

Kirke M. Hasson, Christopher L. Byers, Pillsbury, Madison & Sutro, Matthew A. Coles, Jo Anne Frankfurt, American Civ. Liberties Union Foundation of Northern Cal., Inc., Employment Law Center, A Project of the Legal Aid Soc. of San Francisco, San Francisco, Cal., for plaintiff.

Joseph P. Russoniello, U.S. Atty., Sandra Willis, Asst. U.S. Atty., San Francisco, Cal., for defendants.

OPINION

LEGGE, District Judge.

This case was tried to the court, sitting without a jury, and was submitted to the court for decision. The court has heard and reviewed the testimony of the witnesses, and has reviewed the exhibits admitted into evidence, the record of the case, the briefs filed by the parties, the arguments of counsel, and the applicable authorities. This opinion constitutes the court's findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure.

I.

The complaint asserts two claims. The first is under 29 U.S.C. § 794, a part of the Rehabilitation Act. The cases interpreting 29 U.S.C. § 794 generally refer to it by its public law section number, section 504; for purposes of consistency so will this opinion.

Plaintiff also alleges that the defendants' use of private information about him was a violation of his privacy rights under the due process clause of the Fifth Amendment to the United States Constitution. Plaintiff dismissed his claim for damages under the constitutional claim, so the only relief requested under that count is equitable relief.

This court has jurisdiction over the action by virtue of 28 U.S.C. § 1331 and § 1391(b).

II.

Plaintiff is a medical doctor. He is engaged in the private practice of medicine as a doctor employed by, and the director of, a health care facility. The health care facility is controlled by a hospital.¹ Plaintiff receives a salary from the facility, and his earnings are in part based upon the earnings of the facility from the patients whom plaintiff treats.

From approximately December 1984 to August 1988, defendants sent all persons who were applicants for employment by the Federal Bureau of Investigation to the facility for pre-employment physical examinations, and they sent all employees of the Bureau to the facility for annual and promotion physical examinations. Defendants paid the facility a fee for each of the examinations. Virtually all of those physical examinations were conducted by plaintiff.

Plaintiff has contracted acquired immune deficiency syndrome ("AIDS"). On or about August 15, 1988, someone advised the Bureau that plaintiff had Kaposi's Sarcoma, an AIDS-related illness. Defendants attempted to verify the information and the risks which might exist from plaintiff's performing the physical examinations of the Bureau's employees and applicants. Plaintiff, the facility, and the hospital did not directly confirm to defendants that plaintiff had AIDS. They instead informed defendants that there was no medical risk from Dr. Doe's performing the physicals, and they offered education on the appropriate medical standards. Defendants did not consider the responses of plaintiff, the facility, or the hospital to be adequate. On or about August 23, 1988, defendants ceased sending employees and applicants to the facility for physical examinations because of defendants' concern about plaintiff's illness.

Defendants did not resume sending employees and applicants to the facility until after this court issued a preliminary injunction. Thereafter, defendants authorized three health care organizations, one of which is the facility, to do the physical examinations of the Bureau's employees and applicants. Since defendants began using that procedure, the facility has received fewer patients for physical examinations than it did prior to August 15, 1988.

III.

The threshold issue is whether plaintiff has a private right of action in a United States District Court against these federal defendants under section 504. The section provides in pertinent part as follows:

No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

It is settled in this circuit that AIDS is a "handicap" under section 504. Chalk v. United States District Court, 840 F.2d 701 (9th Cir.1988); Thomas v. Atascadero, 662 F.Supp. 376 (C.D.Cal.1987). For purposes of this analysis, the court will also assume that plaintiff is an "otherwise qualified individual" within the meaning of section 504.²

More precisely, the question is whether such a plaintiff has a private right of action under section 504 in this court against a government agency and its officials who purchase services from plaintiff's employer.³

Neither the statute nor the legislative history answer the question. And in spite of an extensive volume of litigation under section 504 and related sections, no case directly answers the question.

The United States Supreme Court and the courts of this circuit recognize a private right of action under section 504 against the entity which is the recipient of federal funds. School Board v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987); Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984); Chalk v. United States District Court, 840 F.2d 701 (9th Cir.1988); Greater Los Angeles Council on Deafness v. Zolin, 812 F.2d 1103 (9th Cir.1987); Kling v. County of Los Angeles, 633 F.2d 876 (9th Cir.1980); Thomas v. Atascadero, 662 F.Supp. 376 (C.D.Cal.1987). But those cases do not answer the question of whether there is a cause of action against the federal agency which provides the funds. In the present case, it is not the recipient of the funds which allegedly discriminated against plaintiff, but the federal agency itself.

A private right of action exists against a government agency by an employee of the agency, or an applicant for employment by the agency. Johnston v. Horne, 875 F.2d 1415 (9th Cir.1989); Boyd v. U.S. Postal Service, 752 F.2d 410 (9th Cir.1985); Sisson v. Helms, 751 F.2d 991 (9th Cir.), cert. denied, 474 U.S. 846, 106 S.Ct. 137, 88 L.Ed.2d 113 (1985). However, plaintiff here is not an employee of the federal agency. Nor does plaintiff claim that his status as an employee of the facility makes him an employee of the agency. And the right of an employee to sue a federal agency has most recently been limited to section 501, rather than section 504, of the Rehabilitation Act. Johnston v. Horne, 875 F.2d 1415, at 1420.

The Ninth Circuit in Williams v. United States, 704 F.2d 1162 (9th Cir.1983), reversed the grant of an injunction against a federal agency under section 504, but not on the issue of a private right of action; at 1163-4. The court said that the plaintiff classes and organizations had standing to assert their claims. It did not address the issue of a private right of action, and the suit was to compel the agency to issue regulations and was not one for damages.

Several cases have prohibited suits against federal agencies under the statute, albeit in situations not directly controlling the present case. In Marlow v. U.S. Department of Education, 820 F.2d 581 (2nd Cir.1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 780, 98 L.Ed.2d 866 (1988), a teacher was denied a cause of action against the Department of Education on review of an administrative finding. In Salvadore v. Bennett, 800 F.2d 97 (7th Cir.1986), a student was denied a cause of action against the Department of Education, but the decision turned on an analysis of Title VI and Title VII procedures. In NAACP v. Medical Center, 599 F.2d 1247 (3rd Cir.1979), a plaintiff class sued a medical center and government officials alleging that a planned relocation of the medical facility violated section 601 of Title VI and section 504 of the Rehabilitation Act. The Third Circuit held that plaintiffs had a private right of action against the medical center, as a recipient of federal funds, but did not have a private right of action against the federal agency itself. Id. at 1254-55 and n. 27 and 1258-59 and n. 49. In Community Brotherhood of Lynn, Inc. v. Lynn Redevelopment Authority, 523 F.Supp. 779 (D.Mass.1981), a cause of action based on Title VI was not permitted against federal defendants (at 780). Those cases involve some points of distinction with the present case. For example, Title VI cases are not directly controlling because of certain differences in the statutory provisions. However, the legislative history indicates that section 504 was patterned after, and is almost identical to, the antidiscrimination language of section 601 in Title VI. S.Rep. No. 93-1297, 93rd Cong., 2d Sess. 39-40, reprinted in 4 U.S.Code Cong. & Admin. News, pp. 6373, 6390 (1974). In addition, section 504 incorporates Title VI procedures as permissible remedies. The above cases as a whole do indicate a reluctance to permit private rights of action against federal agencies unless the congressional intention to do so is clear.

The most recent case is Cousins v. Secretary of Transportation, 880 F.2d 603 (1st Cir.1989). Initially, a panel of the First Circuit recognized a right of action against a government agency under section 504 with respect to its adoption of regulations. Cousins v. Secretary of U.S. Department of Transportation, 857 F.2d 37, 42-45 (1st Cir.1988). However, that decision was withdrawn, and after an en banc hearing the First Circuit affirmed the District Court's dismissal of the section 504...